In order to have a favorable outcome of a PERM application, i.e., certification, it is necessary to go back to the very beginning to ensure a thorough understanding of the building blocks of the process is in place. The Department of Labor requires the Program Electronic Review Management (PERM) labor certification process be completed before a sponsoring employer can hire foreign workers on a permanent basis on the road to obtaining permanent residency and a green card.
The establishment of the PERM process, according to the Department of Labor regulations, was done to protect U.S. workers. The Department of Labor requires sponsoring employers to attest to the fact that hiring the foreign worker will not lead to the displacement of any U.S. workers. Simply put, the goal of the PERM process is to prove that there are no “able, willing, qualified, or available” U.S. workers to fill the position offered by the sponsoring employer.
The PERM labor certification process is a multi-step process involving numerous different players. Understanding the part of each player in the process will help lead to a favorable outcome.
The PERM labor certification process places the highest burden on the sponsoring employer as it is the entity seeking to hire foreign workers to fill permanent positions within the company. Not only is the sponsoring employer the player responsible for initiating the entire PERM process, it also plays a crucial role in several different stages. One of the main responsibilities of the sponsoring employer is to define the minimum requirements of the job position. (See “Real World” Vs. PERM Job Requirements)
Once the minimum requirements for the position have been set, the employer must conduct the recruitment process. As previously stated, the goal of the PERM process is to prove that there are no “able, willing, qualified, or available” U.S. workers to fill the offered position, and that no U.S. workers will be displaced by the hiring of a foreign worker. This is all shown through good faith recruitment. Good faith recruitment involves advertising the job opportunity through different methods such as Sunday newspaper advertisements, online job boards, and on the company’s website along with the State Workforce Agency. (See What Are The Mandatory PERM Recruitment Efforts?) The recruitment process is usually the most important and time consuming responsibility placed on the employer.
The sponsoring employer must offer the prevailing wage to the foreign worker. The Department of Labor determines the average wage paid to similarly employed workers in a specific occupation in the area of intended employment. The sponsoring employer must be able to show the ability to pay the sponsored employee the prevailing wage. (See When And How: I-140 Ability To Pay For Employment-Based Green Cards) Oftentimes, determining ability to pay can be the deciding factor on whether a company can acquire foreign workers.
Once the recruitment process has been completed and the sponsoring employer has determined that there are no U.S. workers who are available to fill the offered position, it is the employer’s responsibility to file the PERM labor certification application with the Department of Labor. This application must include a detailed job description which includes the job duties, the minimum education and experience requirements, and any special skills which may have been required. After the PERM application has been filed, DOL may request additional information or additional documentation from the employer in the form of an audit. In order to keep the application alive, the employer must respond to any DOL requests in a timely manner. (See What Is Commonly Requested In A PERM Audit?)
The employee, also known as the foreign worker seeking permanent employment in the United States, also plays an important role in the PERM labor certification process. The most important thing the employee must do is meet the job requirements. The foreign worker must meet ALL the education, skills, and experience requirements set out by the employer as the minimum requirements for the offered position. In most cases, the employee must have met all the stated requirements before having started working with the sponsoring employer.
When determining if the beneficiary meets the actual minimum requirements for the position, DOL generally disallows using experience gained while working with the sponsoring employer as DOL states the employer must not require a U.S. worker to have more experience than what is required of the beneficiary. DOL may be skeptical on what the actual minimum requirements truly are if the beneficiary was hired before attaining the education or experience necessary for the position. Of course, there are always exceptions to this rule. (See PERM: Using Experience Gained With The Sponsoring Employer)
The hard and fast rule, however, is that the beneficiary MUST meet all the requirements stated on the PERM labor certification application before the employer files the application with the Department of Labor. While the PERM application is an attestation based application and no supporting documentation is required to be submitted with the ETA 9089 Form, once the application has been approved and the employer moves to file the I-140 with the USCIS on behalf of the employee, the USCIS will require proof the beneficiary met the requirements at the time the PERM application was submitted. Therefore, it is best for the employee to provide the supporting documentation at the onset of the process to ensure the employee qualifies for the offered position.
For education requirements, employees should provide diplomas and transcripts, and possibly education evaluations from a professional evaluation service if necessary. Proof of the employee’s experience must be provided in the form of a letter from the employer with whom the necessary experience was gained. These experience letters are very important, and the employee bears the responsibility of ensuring all necessary information is provided on these letters. Experience letters should:
- Be written on company letterhead which includes the company address, dated and signed by a company representative, and includes the signatory’s job title);
- State whether the work was full-time or part-time and the number of hours worked per week;
- List the job title held while at the company;
- List the dates of employment;
- Provide relevant job duties; and
- Include any special skills required for the position, if application.
If the employee is unable to obtain experience letters directly from previous employers with the above information, it is possible to submit secondary evidence. It must be noted, however, that secondary evidence is not guaranteed to be accepted by USCIS. (See Preparing Experience Letters And Affidavits For The I-140 Stage)
It is also very important for the employee to maintain legal status for the entire time the PERM labor certification process takes place. This means the employee must have a valid nonimmigrant visa such as an H1B or L1 visa or otherwise be in lawful status while the PERM application and the immigrant visa petition are pending. If the employee will be unable to apply for permanent residency for many years due to a backlog of available immigrant visas, it is imperative the employee maintain their nonimmigrant status for the entire duration.
THE DEPARTMENT OF LABOR (DOL)
While the employer is responsible for initiating the PERM and, ultimately, the green card process, the Department of Labor is where the path always begins. The DOL is the government agency responsible for the entirety of the PERM labor certification process.
The first of DOL’s responsibilities in the PERM labor certification process is issuing the prevailing wage. Once the employer has determined the minimum requirements and the job description for the offered position, the employer must submit the prevailing wage request to DOL through ETA Form 9141. This can be done electronically through DOL’s website. The prevailing wage rate is the average wage paid to similarly employed workers of a specific occupation within the area of intended employment. When determining the prevailing wage, the DOL will look at the specific position, the job duties, the requirements of the position, the area of intended employment, travel requirements, and other criteria. (See The Importance Of Meeting The Prevailing Wage Requirement In The PERM Labor Certification Process)
Once the recruitment process has been completed by the employer and the mandatory quiet period has passed, the employer will submit the PERM labor certification application to DOL. Once received, it is DOL’s responsibility to review the application. In reviewing the application, the DOL must consider the qualifications of the beneficiary to determine the actual minimum requirements for the position. As previously stated, the purpose of the PERM process is to ensure that U.S. workers are not being displaced by hiring foreign workers to fill an offered position. It is the responsibility of the Department of Labor to ensure the protection of U.S. workers.
As the PERM application is an attestation based process, the employer is not required to submit supporting evidence of the recruitment process. Therefore, the Department of Labor implements a quality control process in the form of audits to make sure the regulations are being followed. The DOL issues two different types of audits – random and targeted audits. (See Minimize Your Risk Of PERM Audits By Recognizing These Audit Triggers)
If DOL determines that the PERM application is complete and meets all the regulatory requirements, it will certify the application. This means DOL has verified that there are no “able, willing, qualified, or available” U.S. workers to fill the position offered by the sponsoring employer and the foreign worker may apply for permanent residency. If DOL determines the PERM application is incomplete or the regulatory requirements have not been properly met, DOL will issue a denial. If a denial is issued, the employer may have certain options available to them to appeal the decision with the Department of Labor. (See Options After PERM Labor Certification Denial)
While an attorney is not required for the PERM process, it can be highly beneficial to have solid legal representation for the tricky process to ensure the employer is compliant with all the regulatory requirements and to help increase the likelihood of success with a certification. For many employers, even employers who have undergone the PERM process numerous times, the complex and strict regulations required by the Department of Labor can be difficult to understand and navigate. As there are so many moving parts in the PERM process, there are many different points in time where a fatal mistake can be made. (See Top 5 Mistakes Employers Make During The PERM Labor Certification Process)
An experienced immigration attorney who is well versed in not only the overall employment based green card process, but the PERM labor certification process specifically, can provide legal advice on the regulatory requirements, making sure the prevailing wage request and minimum requirements for the position are properly submitted, and the tricky recruitment process. As previously stated, the recruitment process is often the most time consuming and important responsibility of the sponsoring employer. Working with an experienced attorney who can provide guidance on the steps and the intricate timing, the content of the advertisements, and provide advice on the applicants can help make this step a little less daunting.
As the processing times for prevailing wage determinations and PERM application approvals are steadily increasing, unforeseen errors can cause consequences in timing and strategy when dealing with employees maintaining valid nonimmigrant status to remain in the US. Working with an attorney to review the documents and applications before submission will ensure the process is successful from the very onset as mistakes made could require the entire process be started again.
For over 25 years, Reddy & Neumann, P.C. has focused solely on U.S. employment-based immigration, and works with employers to establish best practices when navigating the PERM labor certification process. If you are in need of a U.S. work visa or permanent residency, speak with one of our immigration lawyers. Please contact us online, call our Houston business immigration office directly at 713-953-7787 or schedule a consultation.
By: Jessica Palarca
Jessica earned her J.D. from the University of Houston Law Center in 2009 and was admitted into the Texas bar the same year. As the child of two immigrant parents, Jessica found her passion for immigration law early in her career. With over a decade of experience in both the private and non-profit sectors, she brings a different perspective to each case she handles. Through the years, Jessica has learned that to achieve the best possible results for each individual served, one must keep things simple and provide personalized attention and care to each case.